Tamir Rice Killing: No Charges For Police

I find this decision surprising given that Ohio, where the shooting occurred, is an open carry state. Now, children are not allowed to open carry in Ohio: an unaccompanied child carrying a pistol would be cause for concern. However, in order to realize that it was a child and not an adult carrying the pistol, you would first have to take note of the fact that you were dealing with an unaccompanied child.

So if it were an adult carrying a gun in the park, given the open carry law there is no reason to presume criminal intent. If it is a child carrying the gun, there is no reason to treat the case as being threatening in the way that an adult with a gun would be. The officers' defense is that they thought the child was an adult, and that the child appeared to draw the firearm. That may well be true.

However, that's odd: normally the defense is not presented to the grand jury. Normally the grand jury would hear: the child wasn't breaking any laws, even if the child looked like an adult the pistol they were carrying might well have been legal under the law, and yet the child was shot dead so immediately that the shooter's judgment is unlikely to meet the rational-man test. That would get you charges, and you'd work out at trial whether the defense was sufficient to find that the accused were not guilty of those charges.

It's going to be hard to convince people that this isn't a rigged game when the standards are so different. You can say that it's about the law enforcement system protecting its members and not about race, maybe, by pointing at the Waco shootout as evidence that being white doesn't always help you much: there the police shot at least four of the nine dead with rifles, but the only people facing indictment are bikers whom the DA apparently can't tie to any specific act of violence at all. The system just doesn't work when the police are behind the trigger.

But that’s half the story. The other half is the fact that the county prosecutor, Timothy McGinty, extended these two cops the same exceptional courtesy that Darren Wilson received in the shooting of Michael Brown — namely, he presented all the facts to the grand jury instead of only those facts most beneficial to the prosecution’s side. That’s good procedure, as it means someone who’s likely to be found not guilty at trial can go free sooner due to lack of probable cause. Wilson, who was cleared by Obama’s DOJ in the Brown shooting, is a perfect example. But only a very few lucky souls, usually police officers facing high-profile charges of excessive force, seem to benefit from that sort of prosecutorial diligence.

At the time, I remember saying that this is what we should always do -- and that the shame was that we so rarely do it. How many of those Waco indictments would have been thrown out if the prosecutor presented the full facts (such as, for example, the fact that they apparently have no idea precisely who shot anyone)?

It's hard to endorse the standard if it is not anything like evenly applied.

The unions, Leftists, are allied with the police unions, also Leftists. Thus they generate the "justification" each one needs for an external threat, and thus extreme measures. It's called engineering a crisis, creating a problem so that you can gain power through presenting the Solution.

So when the police makes a mistake, they don't crush their union policies and money laundering schemes. That is a no go area. Instead they say they feel "targeted". And when the unions have to knee cap crush some poor strike breaker, they also say the "police are out to get them" for being black.

As for the bar and lawyer associations and lobby groups, those who do not stop this, are complicit and thus nearly as responsible as the evil doers. The attempt to separate them from police unions and SEIU unions means nothing, but a face saving gesture by the lawyer elites.

That is why the Left is an alliance, not a political party or single unified religion. A single unified command, does not mean a unified dogma or religion.

It's hard to endorse the standard if it is not anything like evenly applied.

This mystifies me, Grim. We can't only endorse doing the right thing if everyone does it. We're supposed to do the right thing because it's the right thing, even if we sometimes fail, or if others fail to do it.

The notion that it's "unfair" to treat people fairly unless we treat everyone fairly (for whatever reason) seems perverse to me. You yourself have often argued that systems need the freedom to treat unequal situations differently.

One size fits all is basically how the Left wants to "create" equality - by reducing everyone to the same level so no one has an advantage (be it good parenting, good schools, just legal processes, etc) over anyone else.

Oddly, the world continues to be deeply and profoundly un-fair and unequal in its treatment of individuals :p

"We can't only endorse doing the right thing if everyone does it. We're supposed to do the right thing because it's the right thing, even if we sometimes fail, or if others fail to do it."

So, first of all, it's incredibly helpful to me that you've shown up to discuss this. It's a matter much on my mind, and you are especially well placed to serve as a foil for my thoughts on the subject. I'm glad you're here.

We're kind of doing this in two places, and much of what I'm going to say really belongs in the other place.

Aristotle says that justice is lawfulness plus fairness, but he doesn't mean any sort of law: he means a law that takes account of human nature, and tries to hold us to doing what is right given that nature. On top of that, though, he thinks we need fairness. Proportionately similar cases should be handled similarly. The reason he gives is that, if we don't do it this way, things fall apart: insurrections arise, states fail (a very common thing in ancient Greece), because the people will rise up in outrage. That, too, is part of human nature.

In the mid-20th century a philosopher named John Rawls proposed that we could simplify the discussion: justice, he said, was simply fairness. That's not to say that he thought we didn't need laws, but that the proper work of the law could be expressed entirely in terms of trying to create fairness in society. Lawfulness thus could be dropped from the definition of justice: the law became merely a means to achieving fairness.

There are problems with that view that the subsequent history has surely made clear, and of which I'm sure I don't need to convince you. But there are problems, too, with dropping the fairness criteria and trying to say that justice is simply lawfulness. Here the law has been applied; it's been applied in what I think is the best way (i.e., by having the DA present all the exculpatory evidence to the grand jury), and therefore justice has been done.

It turns out, Aristotle was right: you really do need both elements. Without a law that takes honest account of human nature, quests after fairness end up causing havoc and discord. But even a just law applied unfairly -- assuming the unfairness is not occasional but systemic -- will also cause the kind of discord that will destroy the common peace and lawful order.

It's not just this case. It's not just this case plus the Wilson case in Ferguson. It's not just these plus Waco. It's also this plus Lois Lerner, the Justice Department making pretty clear that it won't even attempt to prosecute Mrs. Clinton, and today's announcement that the VA execs who profited off misuse of its systems won't be prosecuted either. It's all the different cases of government employees being treated one way, and ordinary people another. Taken together, what we have isn't just ordinary 'life isn't fair' business -- it's systemic injustice in what we call our "justice system."

So yes, I think this is the way the law should always be applied. I don't even have a particular problem with the content of the law. But lawfulness isn't enough for justice. Fairness is important, too. That doesn't mean I think we should railroad these officers because others have been railroaded. It does mean that we need to start applying this standard fairly if we're going to apply it to cases like these.

We're supposed to do the right thing because it's the right thing, even if we sometimes fail, or if others fail to do it.

Well, that raises the question of why prosecutors and Leftist lawyers are allowed to do the "right thing", but faithful police who blow the whistle on union and departmental corruption and vice squads are hammered flat and dead by those lawyers and their police union buddies.

When "doing the right thing" becomes a monopoly based on power and greed, it's not the "right thing" any more, no matter what people would like to think of the superficial benefits and virtues.

In the mid-20th century a philosopher named John Rawls proposed that we could simplify the discussion: justice, he said, was simply fairness. That's not to say that he thought we didn't need laws, but that the proper work of the law could be expressed entirely in terms of trying to create fairness in society.

Rawls is wrong - both fairness and justice matter. I've already agreed on the other post (I think) that good laws can't guarantee justice (or fairness either, for that matter) because humans are fallible. I also happen to believe that even with perfect administrators, well written laws can't guarantee justice or fairness because it's nearly impossible to draft a general rule - or design a justice system - that works equally well across a broad spectrum of situations.

Mental illness is a great example of the limitations of human justice systems. There's simply too much we don't know about the human mind for the system to determine with anything like certainty whether a crime was motivated by evil as opposed to mental illness. This matters because of the mens rea requirement - without intent to break the law or commit an offense, it may be deplorable but it's not punishable under criminal laws.

We can't see inside the human mind or heart, so we're left with external appearances. The same is true of evidence, actually - juries see the evidence that's available/allowed into court, but there may be exculpatory/incriminating evidence they never see.

They have to apply the information they have to the law as it exists (and often the law is silent on the particulars of a given situation).

I'm kind of mystified by the notion that individual failures of the justice system somehow make the system corrupt. Of course the system fails - that it will do so is both inevitable and entirely foreseeable. The question is not whether it will fail (it will, and no one should expect otherwise) but whether it works better or more often than other systems we might try?

I didn't respond to the post about the supposed failures of democracy (which none of us live under, and which I would absolutely expect to fail spectacularly for the all the reasons outlined above) because such complaints always make my head explode. So long as people are self-interested, biased a$$hats, human systems will fail to guarantee their intended results.

I do not believe there to be any mechanism that can prevent such failures, just as no amount of policing can prevent crimes and no amount of good parenting will guarantee healthy, moral, independent children.

The endless human quest to Stop Bad Things From Happening Once and For All is doomed to failure. The goal is - or ought to be - providing a mechanism for picking up the pieces afterwards, and sometimes, setting things right.

I'm kind of mystified by the notion that individual failures of the justice system somehow make the system corrupt.

An individual failure does not, of course. And, of course, all failures taken together are still individual failures. Still, when we can talk about the system as a system we can see whether it handles these kinds of cases well or badly. It does not appear to me that it handles them well.

The endless human quest to Stop Bad Things From Happening Once and For All is doomed to failure.

Sure, but that doesn't mean we shouldn't identify areas of failure and try to improve them. The government needs to abide by its own rules -- indeed, it's much more important that government agents be held to the rules they enforce on others than that ordinary people be held to those rules. Just because the government agents are granted power over others, we need to be extra careful to ensure they are held to account.

Instead, it seems to me that the system is tending to treat government agents to a much kinder standard. That doesn't mean kindness isn't a good thing, or that we shouldn't have more of it. It does mean that the application of the law is backwards in its treatment of agents of the state.

I didn't respond to the post about the supposed failures of democracy... because such complaints always make my head explode.

Well, I don't want to do that. :) In any case, it struck me on that occasion that the people accusing others of losing faith in democracy were really the ones who were afraid of democracy. As they may have reason to be, given the way they have treated the people during their moment of power.